Citation NR: 9622847
Decision Date: 08/09/96 Archive Date: 08/16/96
DOCKET NO. 93-18 597 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Winston-Salem, North Carolina
THE ISSUE
Entitlement to an increased rating for a generalized anxiety
disorder with a history of somatic complaints, currently
evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: North Carolina Division of
Veterans Affairs
WITNESSES AT HEARING ON APPEAL
The veteran and his spouse
ATTORNEY FOR THE BOARD
M. E. Larkin, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1942 to July
1944.
This matter was initially before the Board of Veterans’
Appeals (Board) on appeal from a February 1993 rating action
of the RO. The Board remanded the case in June 1995 for
further development.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his service-connected nervous
condition has deteriorated and is more severe than the
current rating indicates.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence favors the claim for increase and supports the
assignment of a 30 percent rating.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran’s appeal has been obtained.
2. The veteran's generalized anxiety disorder is manifested
by feelings of depression, anxiety and somatic complaints and
probably is productive of definite social and industrial
impairment.
CONCLUSION OF LAW
The criteria for the assignment of a 30 percent evaluation
for the service-connected generalized anxiety disorder have
been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991);
38 C.F.R. §§ 3.102, 4.7, 4.132 including Diagnostic Code 9400
(1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board finds the veteran's claim for increased
compensation benefits is "well grounded" within the meaning
of 38 U.S.C.A. § 5107(a). The United States Court of
Veterans Appeals (Court) has held that, when a veteran claims
a service-connected disability has increased in severity, the
claim is well grounded. Proscelle v. Derwinski, 2 Vet.App.
629 (1992). The Court has also stated that where entitlement
to compensation has already been established and an increase
in the disability rating is at issue, the present level of
disability is of primary concern. Francisco v. Brown, 7
Vet.App. 55 (1994). The Board further finds that the matter
has been adequately developed for the purpose of appellate
review.
Background. The veteran received a disability discharge in
July 1944 for psychoneurosis, anxiety type, severe,
manifested by tension, tearfulness, abdominal pain, vomiting
and emotional instability. He was granted service connection
for a nervous condition and assigned a 30 percent evaluation
by a rating action of July 1944. That evaluation was
decreased to 10 percent in April 1947 and then to a
noncompensable level in December 1951. The current rating of
10 percent has been in effect since August 1983.
At a personal hearing in June 1993, the veteran testified
that he had pain in his neck, back, shoulders and feet and
suffered from indigestion, all of which he related to his
nervous condition. He further testified that he was no
longer able to work in watch repair because he was unable to
make the decisions necessary to the work. The veteran’s wife
testified that he was depressed and angry and did not get
along well with other people. She reported that he always
worked alone and moved many times over the years when his
business suffered due to his inability to get along with
people.
Pursuant to the Board remand, the RO obtained copies of
additional outpatient treatment records and afforded the
veteran a VA neuropsychiatric examination. In the report of
the September 1995 VA examination, the examiner detailed the
veteran’s complaints of tension and anxiety. The veteran
told the examiner that he had stopped working in watch repair
because his nerves were so bad.
On objective examination, the veteran was found to be alert
and cooperative with no loosening of associations or flight
of ideas. His mood was somewhat tense and his affect was
appropriate. He was oriented and without delusions,
hallucinations or suspiciousness. The diagnosis was that of
generalized anxiety disorder on Axis I and the examiner
assigned a GAF score of 59 on Axis V.
Outpatient treatment records associated with the claims file
include reports referable to the veteran’s physical and
psychiatric complaints. In an entry dated in December 1995,
the Chief of the VA Mental Hygiene Clinic noted the veteran’s
complaints of increasing nervousness and depression and the
assessment was that his condition was in decline. The
examiner indicated that the veteran had severe and chronic
emotional problems with severe anxiety and periods of stress
and depression, although treatment seemed to control the
symptoms to some extent. The veteran was considered to be
unemployable and in need of continued treatment for long term
chronic emotional and physical problems. It was also noted
that without treatment, the veteran could develop acute flare
up of his basic illnesses, such as neurosis, generalized
anxiety disorder and dysthymia.
In a treatment note dated in January 1996, the veteran
reported increasing symptoms of stress, worry and anxiety and
his condition was noted to be in decline. He was noted to be
in good control of himself and reality. Medication changes
were indicated at that time in view of increasing dysthymia
and anxiety and neurotic anxiety without suicidality.
Analysis. The veteran’s disorder is evaluated as 10 percent
disabling under the provisions of Diagnostic Code 9400 of the
Schedule for Rating Disabilities, 38 C.F.R. § 4.132 (1995).
The provisions contained in the rating schedule represent as
far as can practicably be determined, the average impairment
in earning capacity in civil occupations resulting from
disability. In assessing the severity of a psychiatric
disorder, effects of that disorder on the veteran's ability
to interact on both a social and industrial level are
considered. In this regard, however, social inadaptability
is evaluated only as it affects or impairs industrial
adaptability.
The evaluation for the veteran's service-connected anxiety
disorder is based on the degree of impairment of his social
and industrial adaptability. A 30 percent evaluation
requires that the ability to establish and maintain effective
relationships with people be definitely impaired and that the
psychoneurotic symptoms be such as to produce definite
industrial impairment. A 50 percent evaluation requires that
the ability to establish and maintain effective relationships
be considerably impaired and that the psychoneurotic symptoms
result in considerable industrial impairment. 38 C.F.R. Part
4, Diagnostic Code 9400 (1995).
As stated above, the criteria for a 30 percent evaluation
require “definite” social and industrial impairment. In Hood
v. Brown, 4 Vet.App. 301 (1993), the United States Court of
Veteran’s Appeals (Court) stated that the term “definite” is
“qualitative” in nature, whereas the other terms used to rate
mental disorders are “quantitative” in character, and invited
the Board to “construe” the term “definite” in a manner which
would quantify the degree of impairment.
In a subsequent precedent opinion, VA’s General Counsel
concluded that “definite” should be construed as meaning
“distinct, unambiguous, and moderately large in degree.” As
used in rating mental disorders, it represents a degree of
social and industrial inadaptability that is “more than
moderate but less than rather large.” VAOPGCPREC 9-93 (Nov.
1993) (O.G.C. Prec. 9-93). The Board is bound by this
interpretation. 38 U.S.C.A. § 7104(c). Bearing these
considerations in mind, the Board will address the merits of
the veteran’s claim.
In evaluating the current severity of the veteran’s service-
connected anxiety disorder, the Board observes that the
veteran was reported to be having signs of anxiety, feelings
of depression and headaches, as well as various somatic
complaints. In the most recent treatment reports, a VA
physician noted that the veteran was experiencing increasing
nervousness and depression and his condition was in decline.
That examiner observed that the veteran had severe and
chronic emotional problems with severe anxiety. The
examiner’s classification of the disease as “mild,”
“moderate,” or “severe” is not determinative of the degree of
disability, but the report and the analysis of the
symptomatology and the full consideration of the whole
history by the rating agency will be. 38 C.F.R. § 4.130.
It was also noted that the veteran’s condition required
continued treatment to control the symptoms and avoid acute
flare ups of his basic illnesses. The most recent treatment
reports indicate that the veteran’s condition was in decline,
but that he was in good control of himself and reality.
Changes were made in medication to ease the increasing
symptomatology.
The veteran reported that he had worked alone for many years,
but felt unable to continue the work due to increasing
nervousness. He also reported having a long-term stable
marital relationship, although he was somewhat irritable to
his wife. He had received ongoing outpatient treatment over
the years, and the VA examiner assigned a GAF score of 59.
Examining physicians have indicated that the veteran suffers
from chronic emotional and physical problems which require
long term treatment.
In light of the currently recorded clinical findings and
those findings referable to the veteran’s social and
industrial adaptability over the years, the Board concludes
that the veteran’s level of disablement caused by the
service-connected generalized anxiety disorder more nearly
approximates that of definite social and industrial
inadaptability. Accordingly, an increased rating of 30
percent is assignable. Absent specific findings of
considerable industrial impairment due to the service-
connected generalized anxiety disorder alone, the Board finds
that the assignment of a rating higher than 30 percent is not
for consideration at this time.
Consideration has been given to the provisions of 38 C.F.R.
Parts 3 and 4, whether or not they were raised by the
appellant, as required by Schafrath v. Derwinski, 1 Vet.App.
589 (1991). However, the Board has applied all the
provisions of Parts 3 and 4 that would reasonably apply in
this case.
ORDER
A 30 percent evaluation for the service-connected generalized
anxiety disorder is granted, subject to the regulations
governing the payment of monetary benefits.
RIPLEY P. SCHOENBERGER
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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